Citation Nr: 1805016 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-02 925 DATE THE ISSUES 1. Entitlement to service connection for a right elbow disability, to include as secondary to a service-connected disability. 2. Entitlement to service connection for residuals of a broken left wrist. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for allergic rhinitis. ORDER Service connection for a right elbow disability is denied. Service connection for residuals of a broken left wrist is denied. Service connection for a low back disability is denied. FINDINGS OF FACT 1. A right elbow disability did not manifest in service, is not related to service, nor is proximately due to a service-connected disability. 2. A left wrist disability did not manifest in service and is not related to service. 3. A low back disability did not manifest in service, is not related to service, and did not manifest within a year of service discharge. CONCLUSIONS OF LAW 1. The criteria for service connection of a right elbow disability have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for service connection for residuals of a broken left wrist have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty from July 1980 to February 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Boise, Idaho (RO). In February 2014, the Veteran testified before a decision review officer. In October 2017, the Veteran testified at a videoconference hearing before the undersigned. Transcripts are of record. In July 2017, the Board remanded this matter for the above noted videoconference hearing, and the case has been returned for appellate consideration. The Board finds there has been substantial compliance with its July 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand). This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. The issue of entitlement to service connection for allergic rhinitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Veterans Claims Assistance Act of 2000 As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017). In the June 2017 informal hearing brief, the Veteran's representative claims that the VA examinations afforded to the Veteran have been inadequate because the examiners did not consider properly the Veteran's statements. Because the Board finds that the Veteran is not credible, the Board finds that VA fulfilled its duty to assist in this regard. Competent lay evidence is any evidence that does not require "the proponent to have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." 38 C.F.R. § 3.159(a)(2) (2017); see Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). The Veteran is competent to report that which he perceives through the use of his senses. Competency of evidence differs from credibility and weight, however. "The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted." Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Layno, 6 Vet. App. at 469; Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating, "Although interest may affect the credibility of testimony, it does not affect competency to testify."). Lay evidence is credible when it is internally consistent and consistent with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see, e.g., Curry v. Brown, 7 Vet. App. 59, 68 (1994). However, "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character." Caluza, 7 Vet. App. at 511. During testimony in February 2014 before a decision review officer and in October 2017 during a videoconference hearing before the undersigned, the Veteran testified that while in service he had a motorcycle accident during which he broke both wrists, that both wrists were placed in casts, and that he was placed on desk duty for two months. The Veteran's service treatment records show that in September 1988 he had a motorcycle accident with a right wrist injury that did not show a fracture on X-ray that was treated with a thumb spica splint. The Veteran was seen in follow up several days later, during which it was determined that the splint bandage was too tight due to swelling. The splint was replaced and he was put on profile until the beginning of October 1988. In October 1988, the Veteran was evaluated and it was determined that he had a healed wrist sprain with range of motion within normal limits, and he was returned to full duty status. The Veteran's service treatment records are silent for any complaint or treatment of a left wrist condition while in service. In February 2014, the Veteran testified about his in-service chainsaw accident, stating that it cut his bicep to the bone and filleted it out. He stated that he nicked the nerve bundle and the bone. He stated that there was a question of whether he would lose the arm. He stated that after the cut was sutured, he was put on a board, and every three weeks he went in for a dressing change, which went on for three months. The Veteran's service treatment records show that in November 1985 the Veteran had 38 stitches removed that had been placed eleven days prior after a chain saw accident. It shows that the Veteran was returned to full status, that there was full range of motion with good strength and no sensory loss. He was cleared for flying. The records show that he had been seen the week before for a suture check, when it was determined that there was mild infection that was treated with antibiotic. In his January 2013 VA Form 9, the Veteran stated that he had a cast on his left ankle for nine months after he twisted it playing racquet ball. In February 2014, the Veteran testified that when he injured his right ankle in service, it was put into a cast that was above the knee. He stated that he wore this cast for three months, then he requested that it be changed to a walking cast. He stated that the walking cast was below the knee. He stated that he wore this cast for another two months and that he had to learn how to walk again after the cast was removed. The Veteran's service treatment records show that on August 3, 1981, he suffered a right ankle sprain and was ordered to use crutches and placed on profile. The records show that the profile was continued on August 11, 1981. An August 11, 1981, radiographic report shows a normal examination of the right ankle. It was noted that the Veteran twisted his right ankle playing racquet ball; there was no swelling but difficulty with weightbearing; X-ray was negative for fracture. The records show that he was treated with ace and crutches, warm soaks, gradual ambulation, and he was placed on profile for two weeks no deployment. An August 28, 1981, entry shows that on August 12, a cast had been put on the foot for an inversion ankle sprain, which was removed that day. It was noted that the ankle was not swollen or tender. The Veteran was returned to full status the following week. Based upon a careful review of the Veteran's statements and the evidence of record, the Board finds that not only are the Veteran's statements not corroborated by the evidence of record, they, in fact, are contradicted by it. Accordingly, the Board affords no probative weight to the Veteran's statements and does not find the VA examination reports inadequate. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As such, the Board will now review the merits of the Veteran's claims. Law and Analysis In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). For certain enumerated chronic diseases, such as arthritis, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining § 3.303(b) to those chronic diseases listed in § 3.309(a)). Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307(b) (2017). Alternatively, a disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progression by a service-connected disease or injury. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.310(a), (b) (2017). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. RIGHT ELBOW DISABILITY The Veteran contends that the severity of his injury to his right arm from a chainsaw while in service has caused a right elbow disability. The Board will consider secondary service-connection first. With respect to the first Wallin element, current disability, medical records from the Veteran's family physician show that in February 2005 the Veteran was diagnosed as having right lateral epicondylitis. The Veteran reported that he had had right elbow pain for approximately six months. At the time, the Veteran reported that there was no history of trauma or previous history of similar problems. He was treated with Mobic, and it was recommended that he use a tennis elbow strap and banding. It was noted that physical therapy was considered, and if it was unimproved, cortisone injection would be considered. Accordingly the first Wallin element is met. With respect to the second Wallin element, service-connected disability, the Veteran is service-connected for scar, upper right arm (also claimed as bicep injury) (previously tender scar upper right arm). Accordingly, the second Wallin element is met. With respect to the third Wallin element, medical evidence of a nexus between the service-connected disease or injury and the current disability, in December 2014, a VA medical opinion was obtained based upon a review of the Veteran's claims file. The examiner pointed out that the Veteran's descriptions of the chainsaw accident were not consistent with the medical record created at the time of the injury. The examiner noted that the medical record entry for the emergency room treatment in November 1985 consisted of one paragraph: he was sutured and put on DNIF for one week. It was pointed out that this would not have been the case if the saw had damaged the muscle, nerve, and bone as the Veteran claimed. The examiner noted that according to the Veteran's service treatment records, he was seen eleven days later, the sutures were removed, and it was noted that he had full range of motion, good strength, and no sensory loss. The Veteran was cleared for flying. The examiner also noted that during periodic health assessments in April 1990 and January 1994, the Veteran denied any painful joints. The examiner concluded that given that the medical record indicates that the chainsaw incident in service did not result in more than skin-deep wounds, and given that the medical record states that the onset of epicondylitis was six months prior to February 2005, it was his opinion that it is far less likely than not that the Veteran's right elbow epicondylitis is proximately due to or the result of his right upper arm scar or the chainsaw injury in service which caused the scar. The Board finds that the December 2014 VA examiner's opinion concerning this matter to be persuasive. The VA examiner reviewed the entire claims file and medical history of the Veteran, and provided an appropriate opinion with a supporting rationale which is congruent with the balance of the medical evidence of record. Thus, the Board finds that the VA examiner's opinion is competent and persuasive evidence with respect to this matter. The Board finds that the evidence of record lacks competent evidence that the Veteran's right elbow disability was caused by or aggravated by his service-connected scar from an in-service accident with a chainsaw. Therefore, the third Wallin element, medical nexus, has not been met, and secondary service connection is not warranted. In consideration of direct service connection, as noted above, the Veteran has a current diagnosis of right lateral epicondylitis, so the first Holton element is met accordingly. With respect to the second Holton element, in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records show that in November 1985 the Veteran's right arm was injured with a chainsaw. There are no notations that the right elbow was involved. Furthermore, the Veteran's service treatment records are silent for any complaints or treatment of the right elbow. Accordingly, the second Holton element is not met, and the claim fails. With respect to the third Holton element, medical nexus, in the absence of evidence of an in-service incurrence or aggravation of a disease or injury, a medical nexus opinion would seem to be an impossibility. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). RESIDUALS OF A BROKEN LEFT WRIST The Veteran contends that he suffered a broken left wrist while in service for which he should have service connection for residuals. With respect to the first Holton element, current disability, the Board notes that in the April 2013 report of a VA examination of hand and finger conditions it was noted that the Veteran had less movement than normal in both wrists. The Board notes that the Veteran has not stated what the symptoms of his current left wrist disability are or that he has received any treatment for it. During his February 2014 testimony he stated that the pain medication for his other ailments also treated his left wrist condition. For the purposes of this decision only, the Board finds the first Holton element met. With respect to the second Holton element, in-service incurrence or aggravation of a disease or injury, as discussed above, there is no competent evidence of record showing that the Veteran complained of or was treated for any left wrist condition while in service. Accordingly, the second Holton element is not met, and the claim fails. With respect to the third Holton element, medical nexus, in the absence of evidence of an in-service incurrence or aggravation of a disease or injury, a medical nexus opinion would seem to be an impossibility. Accordingly, the third Holton element is not met, and the claim would fail on this basis as well. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). LOW BACK DISABILITY The Veteran contends that he has a low back disability that should be service connected. In his January 2013 VA Form 9, the Veteran stated that when he injured his back in service, without stating the nature of the injury, he was told by the doctor that if he returned for any back condition, the doctor would make sure he never flew again. The Veteran claimed during February 2014 testimony that due to a twisted right ankle he was in a cast for nine months and that walking and bending while in the cast affected his back. This argument was put forward again in the Veteran's representative's April 2015 statement. During his October 2017 hearing testimony, the Veteran stated that he had back pain almost immediately after the motorcycle accident. He stated that every time he went to sick call they gave him pain medication, and over the years it has gotten worse. With respect to the first Holton element, current disability, the Veteran's medical records from his family physician show that in January 1999 he complained of back pain. The Veteran stated that he tried to pull something out of his truck and felt a pulling sensation in his low back. The Veteran reported that the last time he had low back pain had been six years before and that he had had no problem since. The Veteran was diagnosed as having LS strain. A December 2003 notation in his family physician medical records shows that the Veteran was wearing a back brace. In June 2010, the Veteran was afforded a VA examination during which he was diagnosed as having L5-S1 degenerative disease of the lumbar spine. Accordingly, the first Holton element is met. With respect to the second Holton element, in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records show that in December 1983 the Veteran was seen one time for a complaint of back pain from lifting at work. It was opined that this was probably job related. The record shows that the Veteran was provided education on lifting, and possible exercise for back muscle strengthening was considered. Accordingly, the second Holton element is met. With respect to the crucial third Holton element, medical nexus between the in-service disease or injury and the current disability, in June 2010 the Veteran was afforded a VA examination of his spine. At that time, he reported injuring his back in 1985 by bending on the flight line. The examiner opined that the Veteran's current lumbar spine condition was an intercurrent event, not related to the Veteran's one-time back treatment while in service. In an October 2010 medical opinion, the examiner noted that the Veteran denied having low back pain at each of his subsequent military physicals after 1983. The examiner opined that the Veteran's current lumbar disease is not related to or caused by the one-time treatment of lumbar back pain in 1983 and that the condition is most likely due to an event after military service. The Board finds that the VA examiner's opinion concerning this matter to be persuasive. The VA examiner conducted a physical examination of the Veteran, reviewed the entire claims file and medical history of the Veteran, and provided an appropriate opinion with a supporting rationale which is congruent with the balance of the medical evidence of record. Thus, the Board finds that the VA examiner's opinion is competent and persuasive evidence with respect to the matter of whether the Veteran's back disability is related to service. Accordingly, the third Holton element is not met, and the claim fails. Furthermore, the Veteran was not diagnosed with arthritis of the spine within one year of separation from service so service connection based upon presumption is not warranted. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REMAND Unfortunately, further development is needed for a proper merits adjudication of the Veteran's claim of service connection for allergic rhinitis. The Veteran contends that his preexisting allergic rhinitis (hay fever) was aggravated while he was in service and that thus he is entitled to service connection. The relevant evidence includes the Veteran's service treatment records showing that on his February 1980 induction examination he had seasonal hay fever. His records show that while in service he was tested for allergies, evaluated for asthma, and successfully treated with allergy shots for many years. In June 2010, the Veteran was afforded a VA examination during which he was diagnosed as having allergic rhinitis. In an October 2010 medical opinion, it was reported that the Veteran had been treated while in service for allergies by desensitization. It was opined that the Veteran's allergies were not permanently aggravated while in service beyond their natural progression because they were seasonal as stated by the Veteran. However, the Board notes that where a preexisting condition is noted on entry into service and there is an increase in symptoms during service, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (b) (2017); Cotant v. Principi, 17 Vet. App. 116, 124, 130 (2003). In his case, allergies were clearly noted on entry, and there was clearly an increase in symptoms in service, as the Veteran was treated on numerous occasions with allergy shots. Therefore, this matter should be remanded for the VA examiner to clarify whether it is clear and unmistakable that any increase was due to the natural progress of the disability. Accordingly, the case is REMANDED for the following actions: 1. Forward the Veteran's claims file to the June 2010 VA examiner (or a suitable substitute if the examiner is unavailable) to obtain an addendum opinion regarding whether the Veteran's allergic rhinitis. The examiner must determine whether it is "clear and unmistakable" (obvious, manifest, or undebatable) that any increase in severity of the Veteran's allergic rhinitis during service was due to the natural progress of the disease. The examiner must provide a complete rationale for any opinion expressed. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the action taken in the paragraph above, the Veteran's claim for service connection must be readjudicated. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Counsel Copy mailed to: The American Legion Department of Veterans Affairs